When unidentified individuals defame businesses or professionals online, the harmed parties can potentially serve subpoenas on relevant entities for documents containing identifying information about the authors of the online defamation.

The way this process often plays out is as follows (noting this is extremely generalized):

Party A publishes false and defamatory statements about Party B in a review on a third-party website;

Party B, which/who has adequate legal grounds for doing so, files a lawsuit against the unknown Party A for defamation and related causes of action;

Party B serves a subpoena—seeking documents containing identifying information pertaining to Party A—on the parent company of the website on which Party A published his or her defamatory statements

The subpoenaed entity produces the requested documents, from which Party B will either learn Party A’s identity, or Party B will need to consider issuing additional subpoenas based on new information produced in response to the first subpoena (such as IP addresses and/or email addresses owned by other entities).

While we most often see internet defamation take place on third-party websites—and we have published several blog posts about using subpoenas to identify anonymous defamers on various websites—some people actually register new domains and publish false and defamatory content on their own websites.

In this latter scenario, the website owner/author of the damaging statements is unlikely to leave identifying information on his or her website. Further, he or she might even use a privacy service to hide his or her contact information, which is legitimate so long as he or she has not provided fake or inaccurate contact information.

When people want to learn about a product, service, company or professional, they often go straight to the internet. And, unsurprisingly, a large percentage of people are going directly to search engines.

According to PwC’s 2015 Total Retail Survey, of the more than 19,000 people the company surveyed worldwide, 56 percent of them indicated the first thing they do in researching a product is go to a search engine.

Certainly people (including the authors of this article) are turning to search engines just as often, if not more, when researching a company of professional of interest.

The frequency with which people are searching companies (and individuals) makes a company’s online search results—particularly its first page—function like a brick-and-mortar “storefront.” In other words, a company’s top search results can form the basis of many people’s first impressions about it.

Accordingly, it is critical that companies—particularly midsize or smaller companies whose reputations are most vulnerable online—maintain positive search results, to the extent possible.

It is generally difficult to convince a website to remove defamatory third-party content without a court order.

If person A goes to a website and says person B’s statements about him or her are false, how does that website know whether person A is telling the truth? And, even so, how would the website know if they are really damaging person A?

Free speech is an important right, well-steeped in the history and jurisprudence of the United States. Coupled with that is the valid concern that capricious removal of online content will have the effect of chilling citizen speech.

As such, websites are ordinarily reluctant to delete false content without a mandate declaring that the content is illegal from the court (and even then the order is against the poster, not the website).

However, outside of false statements, certain online speech can still violate a website’s policies. In other words, there are instances in which a website might entertain certain other removal requests.

For example, most sophisticated websites prohibit harassment in their terms or rules. Of course, where a website draws the line between harassment deserving of content deletion and alleged harassment that it will choose to ignore (perhaps simple name calling) is arbitrary.

The Consumer Review Fairness Act is a bipartisan bill aimed at protecting consumers who criticize businesses online. More specifically, the legislation is aimed at prohibiting businesses from inserting language in “form contracts” with customers—essentially non-disparagement clauses in customer agreements—that limits the ability of customers to speak (negatively) about businesses’ goods and services.

Some businesses utilize these clauses—which some refer to as “gag orders”—to preemptively avoid negative reviews, perhaps even burying the language in the agreements.

In December 2015, the Senate passed the Consumer Review Freedom Act, a bill similar to the Consumer Review Fairness Act. Now, H.R.5111 will return to the Senate for consideration.

The next step after the Senate would be for the President to sign the legislation into law.

We have written about subpoenaing internet service providers (ISPs) for identifying information relating to internet protocol (IP) addresses used by their subscribers. In that post, we mentioned that securing identifying information from cable operator ISPs generally requires obtaining a court order authorizing disclosure of the subscriber information.

To briefly illustrate, say a party serves a valid subpoena on an entity (operating a website or other forum) to identify the unknown author of defamatory online content and that author does not object to the subpoena.

In response to the subpoena, the entity produces some information, most helpful of which is an IP address. The party determines through an online search the ISP that owns the IP address is a cable operator.

That party then seeks to subpoena the cable operator for identifying information pertaining to the subscriber assigned the relevant IP address on the date and time in question.

To proceed with the subpoena to the cable operator in this hypothetical (assuming that the party can satisfy the standards for issuing a subpoena to the non-party), the Cable Communications Policy Act of 1984 essentially requires the party to obtain an order authorizing the ISP to disclose the requested subscriber information

Ordinarily, serving a subpoena to identify an anonymous internet poster requires first filing a lawsuit. In fact, we have published several posts about using subpoenas to identify unknown authors of internet defamation and have explained that the first step in the process is filing a complaint against the unknown poster.

There is, however, a procedure pertaining to copyright law, in which a copyright owner can potentially identify an alleged infringer without filing a lawsuit and without a judge’s signature: the DMCA subpoena.

Digital Millennium Copyright

The DMCA—short for the Digital Millennium Copyright Act—is a statutory mechanism (17 U.S.C. § 512) that copyright holders can use to notify online service providers of alleged copyright infringement.

The DMCA offers “safe harbors,” limiting the liability of service providers for third parties’ copyright infringement if they remove or disable access to copyright infringement in response to DMCA takedown notices.

Service providers (defined by § 512(k)(1)) include a number of different types of entities. The elements of a proper DMCA notification are listed at §512(c)(3). Various entities also list them in their’ legal/copyright policy sections (such as on the websites Ripoff Report and Glassdoor).

On April 9, 2014, we launched the Internet Defamation Removal Attorneys blog. Our goal was to serve as a go-to source for information and resources related to stopping internet defamation and removing disparaging content from the internet.

More than two years and 130-plus blog posts later, we feel that we have met that goal. And we will continue to regularly publish content about recent cases and strategies for removing defamation from Google and various websites.

Our blog is powered by LexBlog, “the largest professional blog network,” which operates LXBN. A few weeks ago, we had the privilege of being interviewed by LXBN’s editor, Zosha Millman, for an article about all things Internet Defamation Removal Attorneys blog.

About a year ago, our blog ranked No. 18 in site traffic volume out of nearly 1,000 blogs published by Am Law 200 firms, according to LexBlog’s “Am Law 200 Blog Benchmark Report 2015.” We hope to continue to publish fresh content that both interests our readers (whether longtime subscribers or those who randomly stumble upon one of our articles) and also serves as a helpful resource for businesses and professionals concerned with potential internet defamation and related issues.

Colleen Devanney, who heads up Vorys’ internet defamation practice, is leading an upcoming online webinar presentation on defamation removal on Wednesday, July 27, 2016 at 3:00 ET.

The webinar—entitled “How to Remove Defamation, Negative Reviews, and Other Damaging Content from the Internet”–will run approximately 75 minutes. A full course description and registration information for the webinar can be found on the Clear Law Institute website.

This Clear Law Institute-hosted webinar will feature more than an hour’s worth of discussion on strategies for removing harmful content from the internet, plus Devanney will lead a Q&A session at the completion of her presentation.

The webinar is intended primarily for attorneys. Information about CLE credit is also available on the hyperlinked webpage.

Professionals and companies are being harmed online and on social media in a number of ways. One increasingly common form of online harassment is impersonation of the person (or company) that the harasser is intending to harm through the creation of fake public personas on social media platforms or websites.

Major online and social media players like Google, Twitter and Facebook generally prohibit impersonations, or impostor accounts as they are known on Facebook

Despite its relative lack of success, impersonations are fairly common on Google+. This includes people creating impersonating accounts in order to publish false Google reviews. Similarly, others might create a blog (through Google’s blog-publishing service, Blogger) about or in the name of the targeted person.

Google+’s User Conduct and Content Policy prohibits impersonations, specifically the use of Google+ “to mislead or confuse users by pretending to be someone else or pretending to represent an organization you do not represent.” Thus, in response to a legitimate impersonation report about a Google+ account that is deceiving other users as to the user’s true identity, Google is typically willing to suspend the offending Google+ account.

Online reviews affect nearly every industry, and health care is certainly one of them. What differentiates health care, in this context, is the Health Insurance Portability and Accountability Act of 1996, or HIPAA.

Under HIPAA, a federal privacy law, health care professionals and providers are not allowed to disclose certain health information about patients without their authorization. This restriction has proven to be a challenge for many health care professionals and providers when it comes to addressing online reviews.

In fact, HIPAA has many in the health care industry feeling as though they have their hands tied behind their backs when it comes to dealing with negative and potentially defamatory online reviews.

In an interview with BuzzFeed for a 2014 feature on this very issue, one California neurosurgeon (who was the subject of an online harassment campaign himself) stated there was no way in 1996 that HIPAA could have anticipated online reviews and the resulting issues.

Responding publicly to false online reviews is risky

Many websites today suggest that business owners or others affected by online reviews simply respond and share their sides of the stories. Ripoff Report, for example, makes the following suggestions to the subjects of consumer complaints:

Whitney Gibson

Whitney Gibson is the leader of the Vorys internet defamation group. The group has worked on hundreds of internet related cases from across the country and develops unique solutions for companies and professionals that are being defamed, damaged or attacked online.

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About the Vorys Internet Defamation Group

The 18 attorney Vorys internet defamation group has developed solutions to the negative situations that individuals and companies can face online, including internet defamation and false reviews. The group has unique experience assisting clients throughout the United States whose reputations are being damaged online, focusing on these issues daily and continually refining our strategies and tactics to best suit clients.